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Justice Black’s Last Opinion

“The Post,” Stephen Spielberg’s film that dramatizes Washington Post publisher Katherine Graham’s “bet the newspaper” decision to publish the Pentagon Papers while The New York Times was stymied by a federal court’s injunction, has brought renewed attention to the Supreme Court’s 6-3 decision that ultimately vindicated both newspapers’ actions. The movie pays brief but particular attention to Justice Hugo Black’s rhetorically vivid concurring opinion, in which he not only praised the newspapers for having the temerity to expose the government’s perfidy but also beautifully summarized, in just a few hundred words, the history and philosophical underpinnings of the First Amendment’s guaranty of freedom of the press. At the time, neither he nor anyone else knew that the opinion not only would be his most renowned, but also his last.

The most frequently quoted portion of Justice Black’s concurrence is this paragraph:

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

As it happened, one of Justice Black’s three law clerks during the 1970-71 Supreme Court term was my University of North Carolina undergraduate classmate, close friend, and long-time law partner Bob Spearman, who had attended the Yale Law School after spending two years at Oxford as a Rhodes Scholar. His fellow clerks were Robert B. McCaw from Virginia and John Harmon, a Statesville, N.C. native and Duke law grad who, like Bob, had been a Morehead Scholar at Chapel Hill.

When the Pentagon Papers case unfolded in June of 1971 I was out of the country serving in the U.S. Navy. As a self-identified “First Amendment junkie,” I was riveted by the drama, but I had no access to U.S. radio or television, so in those pre-internet days I monitored developments in the case by reading day-old editions of The New York Times and The Boston Globe flown in. Although I was delighted by the outcome, I was not steeped in either the underlying facts of the case or its procedural history.

After being discharged from the Navy early in 1973 I joined Sanford Cannon Adams & McCullough, the Raleigh law firm where Bob Spearman and I would practice law alongside each other for the next 15 years. Early on I acquired a copy of The Papers & the Papers, Sanford Ungar’s detailed history of the case. Ungar had worked quickly; his book was published less than a year after the Supreme Court’s decision and prior to either of the criminal trials in which the government attempted, unsuccessfully, to convict Daniel Ellsberg and Anthony Russo of having violated the Espionage Act by leaking the papers to the papers. (The first trial, in 1972, ended in a mistrial when it was disclosed that the government had wiretapped a conversation between one of the defendants and his lawyer. During the second trial, in 1973, the presiding judge, William Byrne, dismissed all charges after he learned that White House operatives G. Gordon Liddy and Howard Hunt had burglarized the offices of Ellsberg’s psychiatrist to obtain his files relating to Ellsberg.)

I shared The Papers & the Papers with Bob, who naturally took particular interest in Ungar’s account of the Supreme Court arguments and the Court’s decision. Professor Alexander Bickel, who had been Bob’s constitutional law professor at Yale, had argued the case for The New York Times. As Ungar reported, and as the transcript of the oral arguments clearly shows, Justice Potter Stewart pressed Bickel into conceding that the First Amendment’s prohibition against “prior restraints” on the press was not absolute. The transcript also shows that Justice Black expressed dismay that Bickel was apparently reading the First Amendment to mean that Congress could make some laws abridging freedom of the press. “That,” he said, “is a very strange argument for the Times to be making.” In an unpublished essay that he shared with me, Bob wrote that Justice Black thought “Bickel’s argument was not a sufficiently vigorous defense of a free press, and complained that the Times had not found a lawyer who really believed in the First Amendment.”

Bob also revealed a particularly interesting detail about Justice Black’s eloquent concurring opinion. The majority of it, he said, came about in the usual way: i.e., it was drafted, rewritten and polished by the law clerks based on guidance and direction from the justice. After the “final” draft was printed by the Court’s staff, the clerks drove it to Justice Black’s house in Alexandria, Virginia for his review and approval. After reading through it he took out his pen and, in the margin of the printed draft, wrote out in longhand the entire paragraph that is quoted above. Although no one could have known it at the time, his last acts as a justice of the Supreme Court were to handwrite his ringing defense of the press and to draw an arrow showing where he wanted the language inserted in the draft.

Bob Spearman died in early December of 2017 from a combination of dementia and Parkinson’s disease. After seeing “The Post,” I undertook to verify that what Bob had told me about Justice Black’s handiwork by recounting his story to John Harmon. Here is John’s response:

Dear Hugh,

You have it right. Bob and Bob McCaw and I often laughed about the fact that the portions of Justice Black’s opinions that were quoted in the press inevitably were the portions that he wrote himself, in long hand, in the margins of drafts he was considering. Lest law clerks ever be tempted to elevate their own importance, we must remember that every word of every opinion signed by Justice Black was his and his alone regardless of who performed the task of putting those words on paper. Justice Black well understood that the wording of opinions was immensely important especially when defending fundamental constitutional rights. And no right was more fundamental to Justice Black than the First Amendment right to free speech. Yes, Hugh, you got it right. Those words were Justice Black’s, all those words.